Madras High Court
H.J.Siwani vs U.Ugma Bhai on 12 July, 2007
Author: M. Chockalingam
Bench: M. Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 12.07.2007
Coram
The Honourable Mr. Justice M. CHOCKALINGAM
C.R.P.NPD.No.894 of 2007
and
M.P.No.4 of 2007
1. H.J.Siwani
2. M.J.Siwani .. Petitioners
rep. by their Power Agent
Mr.Jeevaraj
..vs..
U.Ugma Bhai .. Respondent
Civil Revision Petition against the Order and Decretal Order made in R.C.A.No.1263 of 2005 dated 19.01.2007 on the file of VII Small Causes Judge (Appellate Authority) by confirming the order and decretal order made in R.C.O.P.No.1130 of 2004 dated 19.09.2005 on the file of XVI Small Causes Judge (Rent Controller) Chennai.
For Petitioners : Mr.P.S.Raman, Senior Counsel
for Mr.Gupta
For Respondent : Mr.Naghushah
O R D E R
Challenging the Judgment of the Rent Control Appellate Authority, VII Court of Small Causes, Chennai made in R.C.A.No.1263 of 2005, whereby the order of the XVI Small Causes Judge, Rent Controller made in R.C.O.P.No.1130 of 2004, a petition for eviction, was confirmed on the ground of willful default and for non-user, this Civil Revision Petition has been brought forth before this Court.
2. The Court heard the learned counsel on the side of the petitioners and also on the opposite side.
3. The respondent landlord, questioning the monthly payment of rent by the tenants at Rs.6,000/- per month, filed R.C.O.P.No.295 of 2003 for fixing the fair rent and the fair rent was fixed at Rs.14,292/- and from the date of the filing of the R.C.O.P., the tenants were not paying even the monthly rent at Rs.6,000/- per month and thus they fall in arrears for a period of eight months from August 2002 to March 2003, which was paid belatedly in April 2003. Subsequent to the above payment, there was no payment and hence there was a notice issued on 20.03.2004. But even after the same, no payments were made. Under such circumstances, the landlord filed a petition in R.C.O.P.No.1130 of 2004 for evicting the tenants from the premises in question on the ground of willful default. Added circumstance was that the petitioners were carrying on business from 01.06.2001 and later ceased to carry on any business and the petition mentioned to tenancy portion remains unoccupied without any justifiable cause. Under such circumstances they are liable to be evicted on the ground of ceased to occupy. That petition was contested by the revision petitioners/tenants stating that continuously the rent was paid without any default whatsoever and they have business throughout the country and have taken several properties on rent in Chennai alone for lease and have appointed a Manager for making payments of rent to the various premises and inadvertently, he has failed to remit the rent to the respondent premises and when it was brought to the notice of the petitioners herein, who have got a base in Bangalore and is carrying on business, immediately the entire payment was made in Court and that it is true, that there was non payment for a period of 14 months and thus non payment of rent was neither willful nor deliberate. In the earlier occasion also amounts were paid in one lumpsum and under such circumstances, there was no default much less willful default. Added further the learned counsel that the petitioners are carrying on business even till date and it was the false allegation made that the petition tenancy ceased to occupy. Under such circumstances, the petition was to be dismissed. The Rent Controller, on enquiry ordered eviction. Aggrieved over the same, the tenants took it on appeal and on enquiry the appellate forum also rendered a judgment affirming the order of the Rent Controller and hence the present Civil Revision Petition has been brought forth.
4. Advancing his arguments on behalf of the revision petitioners, learned Senior Counsel would submit that in the instant case, in so far as the ground of tenancy ceased to occupy, admittedly all the machineries were actually kept in the premises and it is true that business was not carried on for some time due to the difficulties faced from the authorities and proceedings was also pending in Court. But it would clearly indicate the fact that they continue to occupy the premises but not carrying on the business due to some reasons. It is well settled proposition of law that so long as the machineries continued to be placed in the premises, no question of ceased to occupy would arise. Hence this ground should not have been rejected. In support of his contention, he has relied on the decision of this Court in the case of A.Gulam Mohamed vs. A.K.M.Pichai Maracair reported in 1981 I MLJ 99.
5. In so far as the other ground of willful default, it is not in controversy that rental for the period as mentioned in that petition was not paid but a proper explanation was tendered that revision petitioners/tenants manager was making the payments of monthly rental for different premises and inadvertently he has failed to remit the rent to the respondent premises and once it was brought to the notice of the revision petitioners herein/tenants, who have got a base in Bangalore and carrying on business, immediately the entire payment was made in Court. Apart from that, even from the evidence, it would be quite clear that on the earlier occasion lumpsum payment have been received by the landlord and under such circumstances, it has got to be accepted that there was neither default nor willful on the part of the tenants. In support of this contention, he has relied on the decision of this Court in the case of Duraiappa Nadar vs. Thirupurasundariammal reported in 1989 I MLJ 89.
6. The Court heard the learned counsel for the respondent on the above contentions. He has made serious attempts in affirming the order of the authorities below.
7. The Court paid anxious consideration on the submissions made.
8. Concedingly, the revision petitioners herein have been the tenants of the respondent landlord in respect of the premises in question and originally they have paid monthly rent of Rs.6,000/- and subsequent to the filing of R.C.O.P.No.295 of 2003, fair rent was fixed at Rs.14,292/- per month. Since rent was not paid regularly, notice was issued and subsequent to that no payment was made. Hence R.C.O.P.No.1130 of 2004 was filed for eviction on two grounds. Firstly, there was monthly rental arrears from April 2003 to May 2004 for a period of 14 months and they have committed willful default. The second ground was that the tenants are not carrying on the business from 01.06.2001. Under such circumstances they have got to be evicted on the ground of ceased to occupy also.
9. So far as the ground of willful default is concerned, it is not in controversy that the rent has not been paid for the above said period. It is needless to say that non payment of rental for a period of 14 months has got to be termed as "willful default" unless and until acceptable explanation is brought forth by the tenants for making non payment. The only explanation offered by the tenants before the Court below and equally here also is that they have got a Manager at Madras who was to make the payments of rental to different premises at Chennai city and he has failed to do so and apart from that there were occasions when the landlord used to receive the rent for four or five months in one lumpsum and hence non payment of rent for a period of 14 months, after a month from the date of appearance before the Court, also cannot be termed as willful default.
10. The Court is of the considered opinion that these two explanations cannot be accepted. Firstly, admittedly there was 14 months arrears of rent. It is needless to state that in a given case, when the tenant is in occupation of the premises of the landlord, a duty cast upon him to make payment regularly to the landlord every month. In view of the above, there is no duty cast upon the landlord to make the demand there for. If there is non payment of rental, convincing explanation must be tendered by the tenant, but it is not done so. In the instant case it is noticed that the rental arrears was for a period of 14 months. The contention that Manager, who was appointed to make the payment of rent at different properties, has failed to do so, cannot be a reason. Besides to say, the person who is looking after the management is expected to do so. If not done, that would bind upon the tenants. Therefore, receipt of rental for three months once, etc. cannot be a reason for committing default in making payment of rental for a period of 14 months. Thus, non payment of rental for a period of 14 months by itself would speak that there was default and that would speak of the attitude of the tenants in not making payment, which in the opinion of the Court is supine indifference and it can be termed only as willful default and on that score eviction order has to be sustained.
11. In so far as the other ground is concerned, the Court is unable to appreciate the case of the revision petitioners for the simple reason that there is a clear distinction between carrying on business and occupying the premises. So far as the second limb is concerned, it is a case where persons ceased to occupy the premises. In the instant case, there is nothing to indicate that they ceased to occupy the premises. But there was a plea that they are not carrying on the business. Therefore, not actually carrying on business in a particular premises is different from ceased to occupy the premises. In the instant case, evidence is available that business was not carried on. But that cannot be termed as "ceased to occupy" and therefore, the decision referred to by the learned senior counsel appearing for the revision petitioners have got to be applied to the present facts of the case and thus the second ground does not stand. So far as the first ground is concerned, the Court is of the considered opinion that it is sufficient for ordering eviction and the orders of the authorities below are to be sustained and accordingly sustained. The Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P. is also dismissed.
12. At this juncture, learned Senior Counsel for the revision petitioners would submit that the revision petitioners are carrying on business at Mount Road for the past several years and they have to find suitable accommodation for carrying on the business and therefore sufficient time may be granted.
13. The Court heard the learned counsel for the respondent/landlord on the above submissions. Taking into consideration the facts and circumstances of the case, the Court is of the considered opinion that granting 6 months time for vacating and handing over possession of the premises in question would be reasonable. Accordingly it is ordered. An affidavit of undertaking shall be filed within a period of three weeks here from.
rg To VII Small Causes Judge (Appellate Authority),Chennai.
XVI Small Causes Judge (Rent Controller) Chennai.